By Christopher Peterson, ACLU of Nevada Legal Director
This piece was originally published in the Nevada Current.

When Clark County Sheriff Kevin McMahill recently confirmed that the police department won’t investigate or arrest people simply for being undocumented immigrants, Trump supporters reacted poorly.

“Arrest the sheriff,” wrote Teddy KGB on X, formerly Twitter. Others quickly chimed in: “Arrest him for TREASON.”  “Boycott Las Vegas.” “Deport those cops too!”

As many people already know, however, LVMPD wasn’t announcing a new policy. Las Vegas and many other police departments have long said, correctly, that immigration is a federal responsibility. 

Having local police hunt down undocumented immigrants drains manpower and money from their real job: Enforcing state laws against violent crime, fraud and all the rest. But what many may not realize is that there are also serious, home-grown legal reasons why Nevada law enforcement agencies should be reluctant to serve as local arms of Trump’s “mass deportation” campaign.

Put simply: They could face lawsuits and big financial penalties for violating civil rights under Nevada’s state constitution.  

This has nothing to do with being a “sanctuary city.” Nevada’s police departments are not blocking federal agents from operating or investigating here. But our agencies are required to follow Nevada law even if folks from Washington are not. 

Nevada has a long libertarian reverence for personal freedom, spanning everything from gun rights to reproductive rights. 

The Cato Institute, a right-leaning libertarian think tank, ranked Nevada as first out of all 50 states on protection of personal freedoms in 2023.

Indeed, the Nevada Supreme Court has strengthened the ability of citizens to sue state and local officials, and obtain financial compensation, for violating their state constitutional rights.

In the context of Trump’s efforts to carry out a mass deportation or any other enforcement activity, Nevada has two key constitutional protections.

The first is Article 1, Section 18 of the Nevada Constitution, which replicates the U.S. Constitution’s prohibition on unreasonable search and seizure. Before entering a home or workplace, for example, enforcement agencies must obtain a court-approved warrant supported by probable cause.

The second protection is Nevada’s equal rights amendment, Article 1, Section 24.  That provision declares: “Equality of rights under the law shall not be denied or abridged by this State or any of its political subdivisions on account of race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry or national origin.” (Emphasis added.)

Even where the state protections look the same as the federal law, Nevada’s protections are stronger for a few reasons. 

First, it’s simply easier to sue state and local officials for damages, i.e., money. To be sure, the American Civil Liberties Union has been suing federal agencies for more than a century, and we aren’t about to stop. But the U.S. Supreme Court has made it much more difficult to sue federal government officials for monetary compensation, ruling that Congress needs to explicitly provide for financial remedies.

While we typically ask courts for systemic remedies, like striking down unconstitutional laws or practices, we also know that the threat of a big financial hit goes a long way toward deterring bad government behavior. And the reality is that monetary compensation is often the only thing a person can ask for when their rights have been violated. 

In Nevada, all this has become much easier. In 2022, the Nevada Supreme Court ruled in Mack v. Williams that it was entirely permissible to claim damages from a state or local agency for violating a person’s rights under the Nevada Constitution.  

In that case, a woman sued the Nevada Department of Corrections for violating her constitutional rights for subjecting her to a warrantless cavity search when she was trying to visit someone in prison.

The Nevada Supreme Court acknowledged that our state constitution bans unreasonable searches and seizures, just like the Fourth Amendment of the U.S. Constitution, and when the state constitution specifically prohibits an activity by state or local agencies, that prohibition is “self-executing” and entitles people to sue for financial compensation without any additional permission from the Legislature. So unlike the United States Constitution, Nevada’s constitution does not need extra laws to protect Nevadans.

The second big protection is that Nevada doesn’t offer “qualified immunity” to state and local officials who violate our state Constitution. Qualified immunity lets government officials off the hook when the right they violate isn’t “clearly established,” even where any idiot could tell that what they were doing likely violated the law. This difference between the state and federal constitutions impacted in Ms. Williams case: the officers received qualified immunity for violating her federal constitutional rights, but they were still on the hook for violating her state constitutional rights.

This increased exposure to lawsuits has major implications for local and state law enforcement here as they consider becoming local arms of I.C.E. 

In its first two weeks alone, the Trump administration brazenly flouted the Constitution by trying to revoke birth-right citizenship and by refusing to spend money appropriated by Congress.  To carry out its mass deportation mission, the administration will almost certainly invade the privacy of citizens and lawful residents, enter places of work and worship and/or engage in racial profiling — what does an undocumented person “look like,” exactly? All of these activities would violate both constitutions.

If state and local law enforcement casually take direction from I.C.E., they will face serious legal risk. What’s good for the goose probably won’t be good for the gander.

During his first two weeks in office, President Donald Trump has signed nearly 40 executive orders. They cover a dizzying array of policy areas --from immigration to public school -- and many of them have already been challenged in court. The orders have impacted all of our lives, and, constitutional or not, the damage that some of these orders threaten to do is real.

But can President Trump actually carry out the policy plans outlined in his executive orders? Below, the ACLU explains the history, function, and limits of a presidential executive order.

Article II of the Constitution vests the president with executive power over the government, including the obligation to “take care that the laws be faithfully executed.” An executive order is a written directive, signed by the president, that orders the government to take specific actions to ensure “the laws be faithfully executed.” It might mean telling the Department of Education to implement a certain rule, or declaring a new policy priority. Executive orders, however, cannot override federal laws and statutes.

Statutes have to be passed by Congress and signed by the president. Or, if vetoed, then Congress must override the veto for the bill to become law. Executive orders can’t preempt this process. Furthermore, the Constitution gives Congress control over things like taxation, spending, and certain war powers. Most things we think of when we think of laws come from Congress: what counts as a criminal offense, how much the federal government can tax our income, and declaring war or making treaties.

With an executive order, the president can’t write a new statute, but an order can tell federal agencies how to implement a statute. For example, Congress can declare a certain drug legal or illegal. But with an executive order, the president can tell the Department of Justice if prosecuting certain drug cases is a priority or not.

With an executive order, President Trump can order the federal government to take any steps that are within the scope of the constitutional authority of the executive branch, and do not violate any federal law.

The Constitution has a set of checks and balances written into it so that no one branch of the government is more powerful than the other. The president can’t use an executive order to sidestep those checks and balances, and the president can’t take over powers from other branches, such as the power vested in Congress to pass new statutes or in the courts to invalidate certain laws as unconstitutional.

Some executive orders take effect as soon as the president signs the order. But many other orders do not have any impact until a government agency takes some additional steps. Very often, an executive order requires a federal agency to write a report, undertake an investigation, or promulgate a new regulation. Those steps can often take months, and sometimes years. The order may provide a deadline (like telling an agency it has 60 days to make a certain recommendation for action), but it doesn’t have to.

Those checks and balances provide a few ways that an executive order can be stopped:

• Congress can enact a law that reverses what the president has done, provided Congress has the constitutional authority to legislate on the issue
• A court can hold that an executive order is unlawful if it violates the Constitution or a federal statute
• Any future president can issue a new executive order that rescinds or amends the earlier executive order

Every single president, from George Washington to Donald Trump, has issued executive orders. Most modern presidents issue hundreds of them during their presidency. While some executive orders are pretty mundane, such as declaring a federal holiday or a day of mourning, others have been among the most important actions the United States government has ever taken.

Abraham Lincoln used an executive order—the Emancipation Proclamation—to address slavery during the Civil War. Franklin Delano Roosevelt issued an executive order to integrate the shipyards and other military contractors. Harry Truman signed an executive order to integrate the military. Lyndon Johnson used an executive order to impose civil rights obligations on all federal contractors. More recently, Joe Biden signed an executive order to require every federal agency to find ways to facilitate voter registration.

But some of the federal government’s worst actions also came via executive order. Roosevelt, for example, used an executive order to force the relocation and internment of Japanese Americans to concentration camps. And in his first week of his second presidential term, Trump used an executive order to rescind Johnson’s historic executive order requiring government contractors to comply with civil rights obligations

Trump, or any president, is misusing executive order authority if the president orders the government to take actions that are not authorized by the Constitution or are in violation of federal laws. That’s when the courts must step in to safeguard our rule of law. However, an executive order can be lawful and still cause harm, especially when it threatens important civil liberties or civil rights.

President Trump’s order rescinding Johnson’s order concerning civil right obligations of federal contractors, for example doesn’t overrule any statute that governs equal protection in employment. Even so, it undermines civil rights protections and sends the signal that federal contractors won’t have the same obligation to protect their employees, and it communicates to the public that equal protection is not a priority.

Executive orders can be an effective way to carry out policy while staying within the rule of law. However, as we’ve seen with the Trump administration, they can also cause chaos, damage the democratic process and harm our must vulnerable communities. At the ACLU, we have more than 100 years’ experience holding powerful entities, like the executive branch, to account. Already during this administration, we’ve explained how Trump’s most recent executive orders rolling back DEI efforts, attacking birthright citizenship and targeting trans people are unlawful. We’re continuing to advocate and fight whenever President Trump uses executive orders to attack our civil liberties and civil rights.

By Michael Lyle, Nevada Current
This piece was originally published in the Nevada Current.

As President Donald Trump aggressively escalates immigration enforcement across the country, Nevada legal groups are working to inform people of their rights when dealing with federal agents.

“No matter what your legal status is, whether you have documents, whether you’re here on a visa, no matter what your legal status is, you have the same rights as anyone else that lives in this country,” said Sadmira Ramic, a senior staff attorney at the ACLU of Nevada.

Clark County Commissioner Tick Segerblom, the ACLU of Nevada, and the Legal Aid Center of Southern Nevada hosted an immigration town hall on Wednesday addressing how people should respond if they encounter immigration enforcement. 

Attorneys gave basic guidance telling people to ask to see a warrant before opening a door and not to give fake documents, and also explained the legal conditions determining when immigration officers can and can’t enter a home or search a car without consent. 

They also stressed the importance of not sharing unverified reports of immigration raids to prevent panic. 

Trump began implementing his plan of mass deportation the moment he took office, creating fear and uncertainty among immigrant communities. 

Among his executive actions, he has rescinded a 2011 policy prohibiting immigration enforcement in ‘sensitive’ places such as schools, churches, and hospitals, and issued a directive to the Department of Justice to investigate and prosecute local officials who fail to assist with mass deportations. 

Communities across the country are seeing increased — and increasingly publicized — enforcement, especially by the U.S. Immigration Customs and Enforcement. Enforcement is expected to escalate up as Trump has increased quotas for the number of people detained per day.

Athar Haseebullah, the executive director of the ACLU of Nevada, said based on the most recent reporting he has received, more than half of those that “have been stopped this past month have had no criminal legal system contact at all.” 

Attorneys warned Wednesday night that it’s not just ICE officers. Agents with the FBI, U.S. Drug Enforcement Agency (DEA) and the Bureau of Alcohol, Tobacco, Firearms and Explosives have also been tasked with immigration enforcement. 

Know your rights

While going over an ACLU “Know Your Rights” handout, Ramic said people have basic rights, including the right to remain silent and ask for an attorney and the right to “refuse or not give consent to search yourself or your property,” including a car.

If an immigration agent “asks you to show documents, and you do have those documents, you are required to show them,” Ramic added. “However, in that instance you do not have to answer any other questions.”

People should not provide fake documents “under any circumstances,” she stressed.

If an immigration agent comes to a person’s house, Ramic said, if there is a person who has legal documents that person “should speak to them through the door.”

“You don’t have to open the door,” she said. “The first thing you should do is ask for them to identify themself and ask if they can provide any kind of identification.”

People should request to see a warrant and to make sure it is a judicial warrant before opening the door.

A judicial warrant, which is signed by a federal or state judge, is different from an administrative warrant, which comes from an immigration agency or another federal agency but is not signed by a federal or state judge. 

“If they have a judicial warrant, they can enter your home without your consent,” Ramic said. “If they have an administrative warrant, they cannot enter your home without consent.”

Even if someone allows an officer with an administrative warrant to enter their home, “you have the right to revoke your consent at any time,” she said.

“It’s a disgrace”

Since Trump resumed office, Haseebullah has said the ACLU of Nevada has received non-stop calls and messages from communities targeted by various executive actions. 

“People are really concerned,” he said in an interview following the town hall. “We’re getting calls that are both rooted in real information and misinformation.”

The ACLU is planning additional “know your rights” town halls around Trump’s various actions targeting immigrants, the trans community, and other marginalized groups. 

As immigration enforcement has increased nationwide, Haseebullah said in Nevada enforcement has been restricted to people who “have received a final removal order.”

“From my understanding and the information I’ve received, the requirement is to bring in others that are encountered along the way who may be undocumented as well,” he said. 

Though some of Trump’s executive orders targeting immigration will likely face legal challenges, on Wednesday he signed the Laken Riley Act, which drastically expanded the parameters for who could be detained and deported.  

The legislation mandates undocumented immigrants who are arrested or charged with nonviolent crimes like shoplifting, theft and larceny to be detained even if there isn’t a conviction.

Immigration attorneys nationwide have warned that some immigrants with legal status could be harmed as well.  

The bill was named after a 22-year-old student who was killed by a 26-year-old migrant from Venezuela who is undocumented.

The entire Nevada Democratic delegation voted in favor of the bill despite significant warnings from state immigration groups, civil rights attorneys and legal experts that it would violate people’s due process protections and aid Trump’s efforts around mass deportation. 

Haseebullah said the Laken Riley Act is “one of the most destructive pieces of legislation that’s ever been brought forth by Congress.”

“It’s a disgrace for anybody who voted for it,” he said. “What it does is require mandatory detention for anyone even arrested for shoplifting with no statute of limitations, no right to a trial, no right to even receive charges.” 

ICE in schools

Clark County School District Vice Chair Brenda Zamora briefly spoke at the town hall to address concerns around ICE coming into schools.

The school board adopted a resolution in 2017 to ensure students are protected regardless of immigration status.

“Even though President Trump reversed a policy that stopped immigration officers from arresting people in sensitive places like schools, churches and hospitals, that does not mean that ICE can enter a school anytime they want,” Zamora said.

“The district will not share students’ immigration information unless the court orders it. School police will not assist ICE unless required by a court order,” Zamora added.

Last week, the school district sent an email to staff telling them to contact school police in the event “any law enforcement officer or government agent” appears at a school. CCSD police “are not responsible for and do not enforce federal civil immigration laws,” the email said.

Zamora said the district is in the process of making changes to the 2017 resolution, which will be discussed at upcoming board meetings. 

“Our goal is to ensure that students feel comfortable and secure while attending school, no matter their background,” she said.